## Facts

- Thomas Bernard, a real estate developer with an approximate net worth of $25 million, became engaged to Gloria Bernard, whose net worth was about $8,000; Thomas conditioned marriage on a prenuptial agreement.
- Thomas and his attorney began preparing a prenuptial agreement months before the wedding and repeatedly urged Gloria to obtain independent counsel, but Gloria did not receive any draft until 18 days before the scheduled wedding.
- Gloria retained independent counsel three days before the wedding; that same day Thomas’s attorney transmitted a materially revised “working draft,” leaving insufficient time for meaningful review or negotiation.
- On the day before the wedding, Gloria’s counsel identified major concerns and recommended negotiating an additional written instrument to address them.
- Gloria signed the agreement the day before the wedding, and the next day (wedding day) the parties signed a side letter promising to renegotiate the identified concerns by a set date; amendments were not finalized until more than a year later.
- The amended agreement waived Gloria’s inheritance rights, waived spousal maintenance, severely restricted community-property formation, and permitted use of community funds to improve or service Thomas’s separate property without reimbursement.
- Gloria later petitioned for dissolution and challenged the prenuptial agreement and amendment; Thomas sought enforcement.

## Issues

1. Whether the prenuptial agreement (as amended) was enforceable under Washington law requiring both procedural fairness at execution and substantive fairness at execution or enforcement.
2. Whether the trial court properly invalidated the agreement and awarded Gloria attorney’s fees and costs.

## Decision

- The Washington Supreme Court affirmed the invalidation of the amended prenuptial agreement.
- The court held the agreement was procedurally unfair under the totality of the circumstances, including late delivery of drafts, last-minute material revisions, inadequate time for counsel to advise or negotiate, and wedding-related pressure amid extreme wealth disparity.
- The court held the agreement was substantively unfair because it broadly stripped the economically weaker spouse of inheritance and maintenance protections, restricted community-property rights, and allowed community resources to benefit the wealthier spouse’s separate estate without reimbursement.
- The court rejected the argument that the post-wedding amendment cured the defects, concluding the renegotiation process did not constitute a fresh, arm’s-length agreement and the agreement’s one-sided structure remained.
- The court affirmed the attorney-fee and cost award based on the parties’ financial disparity and the trial court’s discretion to level the playing field in the litigation.

## Legal Principles

- A prenuptial agreement is unenforceable if it is either procedurally unfair at execution or substantively unfair at execution or enforcement.
- Procedural fairness is assessed under the totality of the circumstances, including timing, disclosure, meaningful opportunity for independent legal advice, voluntariness, and absence of overreaching or coercion.
- Advising a party to obtain counsel is insufficient where late disclosure of key terms or last-minute revisions prevent meaningful consultation and negotiation.
- Substantive unfairness may be shown where the agreement imposes extreme, one-sided waivers of economic protections (e.g., maintenance and inheritance) or reallocates community-property benefits to preserve one party’s separate estate.
- A later amendment does not cure unfairness where it is executed in the same pressured context or does not meaningfully alter a fundamentally one-sided allocation of rights.
- In dissolution proceedings, attorney’s fees may be awarded based on financial need and the other party’s ability to pay.

## Conclusion

The court held the prenuptial agreement and its amendment unenforceable because the process surrounding execution deprived the economically weaker spouse of a meaningful opportunity to understand and negotiate the terms, and the resulting allocation of rights was markedly one-sided; it also upheld an attorney-fee award grounded in the parties’ resource disparity.


In re Marriage of Bernard, 165 Wash. 2d 895, 204 P.3d 907 (Wash. 2009)